Citation Nr: 9807410
Decision Date: 03/12/98 Archive Date: 03/25/98
DOCKET NO. 96-21 870 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Huntington, West Virginia
THE ISSUE
Entitlement to compensation benefits pursuant to the
provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1997) for
a human immune-deficiency virus (HIV) related disorder due to
a blood transfusion on October 4, 1989, during a
hospitalization at a VA Medical Center (VAMC).
REPRESENTATION
Appellant represented by: Kevin S. Kaufman, Attorney at
Law
ATTORNEY FOR THE BOARD
J.Horrigan, Counsel
INTRODUCTION
The veteran had active service from October 1948 to June
1954.
This matter comes before the Board of Veterans’ Appeals
(Board) from an April 1995 RO rating decision denying
entitlement to compensation benefits pursuant to the
provisions of 38 U.S.C.A. § 1151 for a claimed disorder due
to a blood transfusion on October 4, 1989, during a
hospitalization at a VAMC. The case was remanded by the
Board for further development in March 1997. This
development has been completed and the certified issue is
before the Board for appellate consideration at this time.
CONTENTIONS OF APPELLANT ON APPEAL
It is essentially contended, by and on behalf of the veteran,
that he is entitled to damages because he received
contaminated blood during a blood transfusion performed on
October 4, 1989 during a VA hospitalization.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file(s). Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran’s claim for
entitlement to compensation benefits pursuant to the
provisions of 38 U.S.C.A. § 1151 for an HIV related disorder
due to a blood transfusion on October 4, 1989, during a
hospitalization at a VAMC, is not well grounded.
FINDING OF FACT
The veteran’s claim for entitlement to compensation benefits
pursuant to the provisions of 38 U.S.C.A. § 1151 for an HIV
related disorder due to a blood transfusion on October 4,
1989, during a hospitalization at a VAMC, is not plausible.
CONCLUSION OF LAW
A well-grounded claim for compensation benefits pursuant to
the provisions of 38 U.S.C.A. § 1151 for an HIV related
disorder due to a blood transfusion on October 4, 1989,
during a hospitalization at a VAMC, has not been presented.
38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
There is a report of contact from the Laboratory Service of a
VAMC dated November 19, 1991. It shows that the veteran
received a blood transfusion on October 4, 1989 at a VAMC.
Reportedly, the blood product was received from the American
Red Cross (ARC). Subsequent to the transfusion of the
veteran with this blood product, ARC discovered and advised
the VA that the blood product used did not meet the standards
set forth by ARC Blood Service directives and federal
regulations. A letter to the veteran from the VA
Undersecretary for Benefits dated in October 1994 indicates
that the medical facility involved was the VA hospital in
Clarksburg, West Virginia. According to the letter, a review
by the medical staff at that facility revealed that in 1989
the veteran had a aortofemoral bypass graft and received a
blood transfusion from a person who was later determined to
be HIV positive. The blood product itself had been
determined to be negative. The letter further advised that
the veteran had tested negative for HIV in August 1992, March
1993, and July 1994.
Copies of VA clinical records indicate that the veteran had
been informed of the problem articulated above at sometime
after October 1989 and he was scheduled for HIV testing. The
record reflects that he was tested in August 1992, April 1993
and July 1994 at a VA medical facility. All three tests were
negative for HIV.
In view of the above, the Board remanded this case in March
1997. In the remand, the Board instructed the RO to contact
the VAMC where the veteran was transfused on October 4, 1989,
and request the complete clinical records, or certified
copies thereof of the entire period of hospitalization
including the record of a transfusion of blood on that date
for association with the claims folder. When this
development was accomplished, the claims folder and
associated clinical records were to be reviewed by an
appropriate VA medical specialist. He was to express an
opinion as to whether the negative tests of the veteran’s
blood in August 1992, March 1993, and July 1994 ruled out the
possibility of his becoming HIV positive as a result of the
October 1989 blood transfusion. If that was the case, no
further laboratory studies were necessary. If that was not
the case the veteran was to be afforded a further blood test
to ascertain if he is HIV positive at the current time. The
physician’s opinion, and records of additional testing, if
any, were to be associated with the claims folder.
Pursuant to the Board’s March 1997 remand, the RO obtained
copies of the complete clinical records documenting the
veteran’s hospitalization at the VAMC in Clarksburg, West
Virginia, from September 9, to October 18, 1989. These
records were associated with the claims folder and have been
reviewed by the Board.
Pursuant to the Board’s remand, the RO afforded the veteran a
VA examination for hematologic disorders in June 1997. The
veteran gave a history of having a blood transfusion in 1989
in which he was transfused with the wrong blood by mistake
which resulted in a bad reaction. The veteran said that,
thereafter, he had to have continuous blood checks for the
next four years. After that he had no more follow-ups. On
evaluation, CBC studies revealed a mild reduction in
hemoglobin, hematocrit, and RBC counts which suggested a mild
anemia. The diagnoses included mild anemia and the examining
physician commented that he did not see any evidence of any
hematological condition except mild anemia. He said that the
veteran should be screened for sickle cell anemia.
In order to comply with the Board’s instructions in the March
1997 remand, the examining physician subsequently provided an
addendum to the above examination report. He noted that the
negative tests of the veteran’s blood in August 1992, March
1993, and July 1994 ruled out the possibility of his becoming
HIV positive as a result of the October 1989 blood
transfusion. He stated that he did not see any reason to
continue testing the veteran in the future, because if he
were going to get infected, he would have been by this time.
The doctor personally believed that necessary screening had
already been accomplished and that the veteran did not have
to be tested any further in this regard.
Based on the essentially undisputed facts in this case, if
the veteran currently had an HIV related disorder caused by
the blood transfusion he received at the VA hospital in
October 1989, he would meet all the requirements for an award
of compensation benefits pursuant to the provisions of 38
U.S.C.A. 1151. See 38 C.F.R.§ 3.358(c)(3) (1997) However,
matters of medical diagnosis and causality are medical
questions, which must turn on medical evidence and medical
opinion. Grottveit v. Brown, 5 Vet. App.91 (1993).
The fact that the donor of the blood for the transfusion, was
later found to be HIV positive is not disputed. The blood
product, itself, tested negative at the time it was
administered to the veteran. However, it is not shown that
the veteran is now HIV positive or that he has any HIV
related disorder. The first requirement of a well grounded
claim, that there be a current disability, has not been met.
Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case
the evidence, including the blood tests of 1992, 1993, and
1994, as well as recent evaluation by a VA hematologist do
not show that the veteran has any HIV related blood disorder
due to his blood transfusion of October 4, 1989, at the VAMC
in Clarksburg, West Virginia. The VA hematologist further
commented that the veteran will not develop an HIV related
disorder in the future due to the October 1989 blood
transfusion. This was obviously based on the fact that as
late as June 1997 a blood test failed to reveal the presence
of such a disorder. Therefore, there is no competent
evidence of a current disability, as required for a “well-
grounded” claim. See Brammer, supra. Therefore, the
veteran’s claim for compensation benefits pursuant to the
provisions of 38 U.S.C.A. § 1151 for an HIV related disorder
due to a blood transfusion on October 4, 1989, is not well
grounded and must be denied.
ORDER
Entitlement to compensation benefits pursuant to the
provisions of 38 U.S.C.A. § 1151 for an HIV related disorder
due to a blood transfusion on October 4, 1989, during
hospitalization at a VAMC, is denied.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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